Advisory Opinion No. 96-1

Re: Gregory F. Fater, Esq.

A. QUESTION PRESENTED

A Newport Probate Judge requests an advisory opinion as to whether he may represent clients of his law firm in non-probate matters before the City Council, the entity that appointed him to his public position, and other municipal agencies in the City of Newport.

B. SUMMARY

It is the opinion of the Rhode Island Ethics Commission that the Code of Ethics does not bar the a Probate Judge for the City of Newport, appointed by the City Council, from representing clients before the City Council and other municipal agencies provided that the case is not related to a matter in which he is involved as Probate Judge.

C. DISCUSSION

1. Facts

The Newport City Council appointed the Petitioner as Probate Judge for a two-year term, effective January 2, 1996. As Probate Judge, a paid position, the Petitioner will hear various probate matters twice a month.(1) The Petitioner advises that, once appointed, he will have no further contact with the City Council. The Petitioner requests an opinion as to whether he, as part of his private law practice, may represent clients before the City Council and other municipal agencies on various zoning and licensing matters.

2. Analysis

Under the Code of Ethics, the Petitioner, as Probate Judge, may not have an interest or engage in any employment or professional activity which is in substantial conflict with the proper discharge of his duties in the public interest. See R.I. Gen. Laws §§ 36-14-5(a), 36-14-7(a).(2) The Petitioner is also prohibited from using his public position or confidential information received through his position to obtain financial gain, other than that provided by law. See R.I. Gen. Laws § 36-14-5(d). The Code also prohibits the Petitioner from representing himself or any other person before the agency of which he is a member or by which he is employed and for one year after leaving the public position. See R.I. Gen. Laws §§ 36-14-5(e)(1), 5(e)(2), and 5(e)(4).

In a past advisory opinion, this Commission considered a fairly analogous request submitted by the Narragansett Probate Judge. See A.O. 90-59. In that opinion, the Commission concluded that, under the Code of Ethics, the Petitioner could not represent private clients before the Town Council. The Commission reasoned that "in order to avoid an appearance of impropriety, the Probate Judge should not appear before his appointing authority." See also A.O. 90-32 (concluding that a member of the Zoning Board of Review, who was appointed by the Town Council, should not represent private clients before the Town Council in order to avoid an appearance of impropriety). However, the Commission did permit the Petitioner to represent clients before other municipal agencies on matters not related to the activities of the Probate Court. Here, once the City Council acts by appointing an individual to serve as Probate Judge there is no further relationship between the Council and the Judge.

Notwithstanding our previous decisions, after considering the Petitioner's request and the relevant provisions of the Code, we conclude that the Code of Ethics does not prohibit a Probate Judge from representing clients before the City Council. We conclude that the mere fact that a public official appears before his or her appointing authority does not constitute a violation of the Code of Ethics without additional evidence implicating the specific prohibitions set forth in R.I. Gen. Laws § 36-14-5. Accordingly, the advisory opinions referenced above will be overruled to the extent that they prohibited a public official from appearing before the appointing authority on the sole ground that it created an appearance of impropriety.

Concerning this Petitioner's request as to whether he may appear before the City Council and other municipal agencies, the prohibitions set forth in R.I. Gen. Laws § 36-14-5(e) are not relevant since he is neither a member nor an employee of the City Council or any other municipal agency. Also, there is no evidence to suggest that the Petitioner a) will have an unfair advantage before the City Council or other municipal agencies; b) exercises any sort of fiscal or jurisdictional control over the Council or an other municipal entity; or c) will use his public position for improper private gain. See R.I. Gen. Laws §§ 36-14-5(a) and 36-14-5(d). Accordingly, provided that the case is not related to a matter in which he is involved as Probate Judge, the Petitioner may appear before the City Council and other municipal agencies.

Footnotes

(1) The Petitioner advises that he will be paid by the City.

(2) Substantial conflict is defined as a "direct monetary gain" or a "direct monetary loss" that accrues, by virtue of the public official's activity, to that individual, a family member, a business associate, an employer, or any business which the public official represents. See R.I. Gen. Laws § 36-14-7(a).

Keywords

Acting as Agent